Kerala High Court
Union Of India vs Muhammed Sobah on 29 July, 2025
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CRL.A NO. 38 OF 2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
CRL.A NO. 38 OF 2024
CRIME NO.OR 1/2019 OF NARCOTICS CONTROL BUREAU,
SUB-ZONE,KOCHI, Ernakulam
AGAINST THE ORDER/JUDGMENT IN SC NO.780 OF 2019 OF
ADDITIONAL SESSIONS JUDGE - VII, ERNAKULAM
APPELLANT:
UNION OF INDIA
REPRESENTED BY THE INTELLIGENCE OFFICER, NARCOTIC
CONTROL BUREAU, KOCHI, PIN - 682037
BY ADVS.
SRI.RAJAGOPALAN NAIR.K.R., CGC
SHRI.R.VINU RAJ, SPL. P. P. NARCOTICS CONTROL
BUREAU
RESPONDENT:
MUHAMMED SOBAH
AGED 23 YEARS
S/O. HAWAA MOHAMED, MALDIVIAN NATIONAL, R/O.
KUDADHAHARAAGE, ALI KATHEEB MAGU, G A, VILINGILI,
MALE, MALDIVES PP IA 11E9899, PIN - 119899
BY ADV SMT.NIHARIKA HEMA RAJ
OTHER PRESENT:
SR PP-RENJIT GEORGE
SPL. P.P. SRI. R. VINURAJ
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
09.01.2024 AND HAVING BEEN FINALLY HEARD ON 21.07.2025, THE
COURT ON 29.07.2025 DELIVERED THE FOLLOWING:
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CRL.A NO. 38 OF 2024 2
JUDGMENT
This appeal has been filed by the Union of India through the
Intelligence Officer, Narcotics Control Bureau (hereinafter referred to as
the 'NCB'), Kochi, challenging the judgment dated 04.09.2023 in
S.C.No.780/2019 on the file of the Additional Sessions Judge-VII,
Ernakulam arising from O.R.No.1/2019 of NCB, Sub-Zone, Kochi.
2. The respondent who was the sole accused in
S.C.No.780/2019 is a Maldivian national. On 05.03.2019, the Kochi
Unit of NCB received information from the Air Intelligence, Customs
Unit, Cochin International Airport Limited (CIAL), Kochi that a
Maldivian national had been apprehended while attempting to leave
India for the Maldives by Indigo Flight No. 6E 1787 on the suspicion
that he was carrying narcotic drugs concealed in secret compartments in
an item of baggage which had been checked in by him on the aforesaid
flight from Kochi to the Maldives. Based on the said information and
following the instructions issued by the Superintendent in charge of the
Kochi Unit, a team of officials from the NCB reached the CIAL at 7:45
a.m. on 05.03.2019, and requested certain independent witnesses to
witness the search proceedings to be conducted by them. The NCB
officers also offered themselves for search, and nothing incriminating
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was found in their possession. The respondent/accused was detained at
the office of the Assistant Commissioner of Customs, Air Intelligence
Unit, CIAL. The respondent/accused disclosed his name as Mohamed
Sobah. According to the prosecution, the Customs officials handed over
one dark ash-coloured trolley bag with the endorsement 'CARIBBEAN'
to the NCB officials. The Customs officials also handed over to the NCB
officials an office note (Ext.P3) and documents such as baggage claim
tag, baggage tag, a Medical Certificate issued by the Medical Officer
(regarding the treatment of an injury on the arm of the
respondent/accused), a letter from the Indigo Airlines to the Assistant
Commissioner, Customs, CIAL, a copy of the passenger manifest for the
Flight No.6E 1787, and a passport issued in the name of the
respondent/accused. The trolley bag was found to contain certain false
compartments at both ends, and in these false compartments, a total of
13 packets of different sizes wrapped in brown cellophane were found.
All these 13 packets were found to contain dark brown-coloured
substance of similar texture, smell, and colour. According to the
prosecution, small quantities from all 13 packets were taken out and
tested with the help of a field drug testing kit, and they were found to
test positive for the presence of Hashish. When all the packets were
weighed together, the total weight came to three kilograms. The articles
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were therefore seized, and the respondent/accused was arrested on
05.03.2019. O.R.No.1/2019 of NCB, Sub-Zone, Kochi was accordingly
registered, and the same was also submitted before the Judicial First
Class Magistrate Court, Angamaly. The Sessions Court, Ernakulam,
took the matter on file as S.C.No.780/2019, and the same was made
over to the Additional Sessions Judge-VII, Ernakulam, for trial and
disposal.
3. The Court framed charges against the respondent/accused
under Sections 8(c) r/w. 20(b)(ii)(C), 23(c), 28, and 29 of the Narcotic
Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as the
'NDPS Act'). On the side of the prosecution, PWs 1 to 5 were examined,
and documents Exts. P1 to P39 were marked. Material objects were
identified and marked as MOs 1 to 4. On the closure of prosecution
evidence, the respondent/accused was examined under Section 313
Cr.P.C. Since there were no grounds to acquit the accused under
Section 232 Cr.P.C., the respondent/accused was called upon to tender
and adduce evidence, if any. However, no oral or documentary evidence
was tendered on behalf of the respondent/accused. On a consideration
of the matter, the trial court concluded that the prosecution had
miserably failed in establishing that the bag/box in question was the
bag/box checked in by the respondent/accused. The trial court also
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found that Section 42 of the NDPS Act had not been complied with. The
trial court further found that even before the NCB officials had arrived
at the airport, the Customs officials who are authorised officers under
the NDPS Act had already conducted a body search of the
respondent/accused and that there is no whisper in the deposition of
any of the prosecution witnesses or any document to show compliance
with Section 50 of the NDPS Act. The trial court proceeded to find that
the photographs produced by the prosecution were not properly proved,
and the name of the photographer/ name of the studio was not known
to any of the prosecution witnesses. It found that PW1 was not even in a
position to state whether the photographs were taken with a digital
camera or a film camera. The trial court found that the Magistrate who
certified the inventory has not been examined as a witness in the case.
The trial court found that there was a defect in the sampling and no
representative samples had been taken from each of the separate
packets, and this was in violation of Standing Order No.1/88 issued by
the NCB. The trial court thus concluded that where the prosecution has
failed to prove the compliance with the provisions of Sections 42, 50,
and 57 of the NDPS Act, the accused cannot be convicted. Thus, on the
finding that there is a severe lacuna in the prosecution case, the trial
court acquitted the respondent/accused. It is thus that this appeal has
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been presented before this Court by the Union of India.
4. Sri. R. Vinuraj, the learned Special Public Prosecutor
appearing for the NCB, would contend that the trial court has
erroneously acquitted the respondent/accused. It is submitted that
Ext.P3 office note of the Customs and Ext.P8 letter from Indigo Airlines,
together with Ext.P9 passenger manifest and Exts.P5 and P6 baggage
claim tag and baggage tag, conclusively proved that the bag/box in
question is that which was checked in by the respondent/accused. It is
submitted that the finding of the trial court that there was non-
compliance with the provisions of Sections 42, 50, and 57 of the NDPS
Act cannot be sustained in law. It is submitted that, in the facts and
circumstances of the case, the provisions of Section 42 of the NDPS Act
will not apply. It is submitted that detection and seizure were made by
the Customs officials based on suspicion, and in such circumstances, the
compliance with Section 42 of the NDPS Act was not at all necessary. It
is submitted that Section 50 relates to search of persons, and therefore,
it does not apply in the facts of the present case as the detection and
seizure of narcotic drugs was from a bag checked in by the
respondent/accused. It is submitted that the provisions of Section 57 of
the NDPS Act have been complied with. It is submitted that, in the
above facts and circumstances, the judgment acquitting the
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respondent/accused of all the offences alleged against him cannot be
sustained in law.
5. The learned counsel appearing for the respondent/accused,
however, contends that this is a case where the prosecution has
miserably failed to connect the respondent/accused with the
contraband in question. It is submitted that even going by the evidence
tendered by PW1 (Intelligence Officer, NCB), it is found that by the time
the said Officer has reached the CIAL in the early hours of 05.03.2019,
the respondent/accused had already been searched by the Customs
officials and his bag had also been opened. It is submitted that during
cross-examination, PW1 had clearly stated in the box that Ext.P6
baggage tag had already been removed from the baggage by the time he
reached the airport. He also stated that Ext.P5 baggage claim tag was
also handed over to him by the Customs officials, and he has not seen
even Ext.P5 being seized from the respondent/accused. Though PW1
denied the suggestion by the counsel for the respondent/accused that
Exts.P5 and P6 do not show that the baggage belongs to the
respondent/accused, he has deposed that there is no description on the
baggage, that he has not seen the Customs officials apprehending the
respondent/accused, that he has not checked the QR code affixed on
MO2 (the trolley bag), that he does not remember the name of the
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Customs Officer who handed over Exts.P5 and P6. He has further
deposed that the bag had already been opened by the time he reached
the airport. He stated that he was not sure as to who had opened the
bag. He stated that he was not aware of any key being retrieved from
the respondent/accused to open the baggage. It is submitted that
Exts.P1 and P2 can only be concocted documents as they mentioned the
substance to be 'Hashish' even before the same was tested. It is
submitted that Ext.P3 does not improve the case of the prosecution as
there is nothing in Ext.P3 which would connect the bag in question with
the respondent/accused. She further relied on a Division bench
judgment of this Court in Union of India v. State of Kerala & Ors
(Crl. A. No. 655/ 2021) and contended that in a similarly situated case,
this Court acquitted the accused for lack of sufficient evidence proving
the baggage belonged to the accused. It is submitted that there is a clear
failure to comply with the provisions of Sections 42, 50, and 57 of the
NDPS Act; therefore, the appeal is liable to be dismissed. It is
submitted that the judgment of the trial court must be sustained.
6. Having heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondent/accused, I am of the opinion that the trial court has rightly
concluded that the respondent/accused is entitled to be acquitted.
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Having perused the records and having gone through the depositions of
PWs 1, 2, and 3, it is clear that the crucial link to connect the
respondent/accused with the baggage in question is missing in this case.
It is true that the baggage claim tag, baggage tag, and boarding pass,
etc., were seized and were produced in Court as Exts. P4, P5, and P6.
However, PW1 has deposed that he had not seen the baggage tag being
removed from the baggage in question. Assuming that the baggage tag
was removed by the Customs officials, the prosecution failed to examine
any of the Customs officials in the case. They also did not deem it
necessary to examine any staff working for the Indigo Airlines or to
procure and produce any CCTV image which would show that the bag in
question had been checked in by the respondent/accused. PW1 clearly
stated in the box that he was not aware of the name of the Customs
official who had unlocked the bag. He stated that Ext. P6 baggage tag
had already been removed from the bag by the time he reached the
airport. He also stated in cross-examination that he had not seen Ext.
P5 baggage claim tag being recovered from the possession of the
respondent/accused. He also stated that he did not cross-check the bar
code (stated as QR code in the judgment) on the bag (MO2). PW1 also
could not state anything about any number lock or other lock on the
baggage, and there was nothing to show that any key had been seized
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from the respondent/accused or that he had provided information
leading to the opening of the bag. Therefore, without going into any
other question, including the question of compliance with the
provisions of the NDPS Act, it must be held that the prosecution had
miserably failed to prove that the bag from which the contraband was
seized belonged to the respondent/accused and the said bag had been
checked in by the respondent/accused to be carried on the Indigo flight
in question from Kochi to Maldives. In that view of the matter, I find no
infirmity whatsoever in the conclusion of the trial court that the
respondent/accused is entitled to an acquittal. The appeal will,
therefore, stand dismissed, confirming the findings of the trial court in
S.C.No.780/2019 on the file of the Additional Sessions Judge-VII,
Ernakulam.
Sd/-
GOPINATH P.
JUDGE
acd
